Published: February 8, 2011

A group of Republican lawmakers normally at loggerheads with the White House over climate change yesterday filed a brief largely supporting the Obama administration's position in a forthcoming Supreme Court case over whether federal common law can be used to regulate greenhouse gases.

The three lawmakers who filed the amicus brief (pdf) are Rep. Fred Upton of Michigan, the chairman of the House Energy and Commerce Committee, Rep. Ed Whitfield of Kentucky, who heads the Subcommittee on Energy and Power, and Sen. James Inhofe of Oklahoma, ranking member of the Senate Environment and Public Works Committee.

Although the Republican lawmakers and the administration are at odds over most areas of climate policy, they are in agreement that public nuisance claims on climate change issues should not be recognized by the Supreme Court.

In their brief, the lawmakers reluctantly concede that U.S. EPA's action to place limits on emissions, which they adamantly oppose, is a strong argument against such nuisance claims because it shows that Congress and the executive branch are actively addressing the issue.

The case, American Electric Power v. Conn., will be argued before the Supreme Court on April 19, the court announced yesterday.

It concerns the efforts of eight states, New York City and several land trusts to require utilities that operate fossil fuel-fired electric power plants to reduce emissions by invoking federal common law. The plaintiffs argue that the power companies are contributing to a "public nuisance" under federal law by releasing greenhouse gases into the air.

American Electric Power Co. Inc. and several other power companies maintain that the Clean Air Act supplants the federal common law when it comes to greenhouse gas emissions.

The New York-based 2nd U.S. Circuit Court of Appeals ruled in favor of the plaintiffs.

In their brief, the lawmakers stressed that climate change is an area that the executive branch, along with Congress, has authority over. They argue that the case is a "non-justiciable political question," meaning that it is an issue that should be resolved by Congress and the executive branch.

That was the basis on which a federal district judge dismissed the original complaint, although it was an argument that the Obama administration downplayed in its brief filed last week (Greenwire, Feb. 1, 2011).

Courts "are not equipped to make judgments about the appropriate emissions standards for utilities located throughout the country," the lawmakers' brief said.

"These public policy determinations are necessarily within the purview of Congress and the executive branch ... because of the complexity and significance of the environmental and economic issues that they raise," the lawmakers added.

In addressing the administration's regulatory actions, the Republicans could not resist attacking the greenhouse gas regulations, noting that they "believe strongly that many of these efforts ... may well exceed the authorities Congress has vested" in the executive branch and are "extremely misguided."

Nevertheless, they added, the regulations "firmly establish" that Congress and the administration "are aggressively resolving what United States policy on climate change should be."

The administration's main argument is that the plaintiffs do not have "prudential standing," meaning that the allegations are too vague for courts to consider them.

Acting Solicitor General Neal Katyal also noted in his brief that the administration's greenhouse gas regulations have effectively displaced any potential common law claims.

David Doniger, an attorney at the Natural Resources Defense Counsel who is part of the legal team representing the plaintiffs in the case, said the lawmakers' argument seems somewhat disingenuous considering they are currently seeking to undermine the administration's regulations.

"The irony here is that they are pushing legislation that would block EPA from acting," Doniger said.

Doniger noted that the bill Upton has introduced that would strip EPA of the power to regulate greenhouse gas emissions does not contain a provision that would prevent courts from hearing public nuisance cases.

In theory, if the Supreme Court were to rule in favor of American Electric Power based on the Obama administration's rulemaking but then Upton's bill became law, the public nuisance issue could become a live question again, he added.

In response, an Energy and Commerce Committee spokeswoman said that such a provision would likely come under the jurisdiction of the House Judiciary Committee.